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2007 DIGILAW 416 (ORI)

Ramahari Acharya v. Krupasindhu Acharya

2007-06-18

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. — The order dated 19.4.2000 passed by the learned Civil Judge (Junior Division), Bhadrak in Execution Case No.66 of 1995 is assailed by the petitioner. 2. Opposite Party No.1 as plaintiff filed T.S No.174/1988. The said suit was decreed on 07.2.1995 and the defendants were directed to allow the plaintiff by way of mandatory injunction to go over their courtyard to thatch and repair the house during the thatching season as the plaintiff had got easementary/right of path by necessity. The trial Court rejected the prayer of the plaintiff to issue mandatory injunction to demolish the construc¬tion of the house of the defendants by themselves and also re¬jected the prayer to declare his right, title and interest over the “Ka” schedule land. 3. No appeal was preferred against the said decree and it has attained finality. While matter stood thus, opposite party No.1 plaintiff/decree holder filed Execution Case No.66 of 1995 in the Court of learned Civil Judge (Junior Division), Bhadrak to execute the aforesaid decree on the ground that he was prevented by the defendants from thatching his house in consonance with the decree passed. The said petition was resisted by the judgment debtors stating that they never violated the decree at no point of time and the allegation levelled was false. During pendency of the Execution Case the decree holder filed a petition under Order 21, Rule 32 C.P.C praying therein to thatch his house as mentioned in the schedule to the petition. He also filed another petition under Order 6, Rule 17 C.P.C for amendment of the Execution Petition. The judgment debtors filed objections to both the petitions. After several adjournments the Execution Case was posted to 22.9.1999 for hearing on the afore¬said two petitions. On the said date, as it appears, though the judgment debtors were present through their advocate none ap¬peared for the decree holder to move the petitions. Consequently the petition dated 18.12.1997 filed under Order 21, Rule 32 C.P.C and the petition dated 13.1.1998 under Order 6, Rule 17 C.P.C were rejected. On 7.10.1999 the decree holder filed another petition under Order 21, Rule 32 C.P.C in the Execution Case alleging that the judgment debtors were not allowing him to thatch his house. Consequently the petition dated 18.12.1997 filed under Order 21, Rule 32 C.P.C and the petition dated 13.1.1998 under Order 6, Rule 17 C.P.C were rejected. On 7.10.1999 the decree holder filed another petition under Order 21, Rule 32 C.P.C in the Execution Case alleging that the judgment debtors were not allowing him to thatch his house. The petition was disposed of by the executing Court observing as follows : “The petition is allowed and the same be read as part of the execution petition filed earlier. The decree holder is directed to take steps as per the prayer made in the petition.” Being aggrieved by the said order the judgment-debtors filed Civil Revision No.48/2000 in the Court of Addl. District Judge, Bhadrak. After the said revision was dismissed as not maintain¬able, the present Writ Petition has been filed. 4. Heard learned counsel for the parties at length. Pe¬rused the materials available. Admittedly earlier a petition filed under Order 21, Rule 32 C.P.C was rejected by the executing Court. Without taking note of the said fact the said Court by the impugned order dated 19.4.2001 allowed the petition and directed that the same to be read as a part of the execution petition filed earlier. Learned counsel for the petitioner is right in stating that there was no such prayer by the decree holder. Be that as it may, the executing Court as would be evident from the order dated 19.4.2001, has not taken note of the fact that an earlier petition filed for self-same relief was rejected by the Court below and abruptly allowed the petition. 5. After going through the same this Court is of the view that the order impugned cannot be sustained as the Executing Court has not discussed and/or taken into consideration all the facts and circumstances. Consequently the impugned order is set aside and the matter is remitted back to the Court below for de novo disposal of the petition filed under Order 21, Rule 32 C.P.C. after giving opportunity of hearing to all the parties. The Writ Petition is accordingly disposed of. Petition disposed of.